*1 See Thus, observations as a R. jail administrator. Ark. Evid. 701. we conclude that the circuit did err court not this admitting testimony. reasons,
Based as well as our upon foregoing review, standard of we hold that circuit court did not err in there was clear evidence concluding convincing terminate under Ark. Code Ann. 9- appellant’s parental rights § 27-341. we Accordingly, grant motion appellant’s attorney’s withdraw, and we affirm the circuit court’s rulings.
Affirmed. C. MALONE v. STATE of
Anthony Arkansas CR 05-218 Court of Arkansas
Supreme 17, 2005 delivered November Opinion *3 David L. for Dunagin, appellant. Gen., Beebe, Gen., L. Ass’t
Mike Valerie Att’y Att’y by: Kelly, appellee. C. Malone Anthony appeals Appellant Jim Gunter, Justice. of one in the White Circuit Court
his conviction
County
deliver,
intent
for which he was
count of
of cocaine with
possession
and a fine of
sentenced to a term of forty years’ imprisonment
$25,000,
intent to
count of
with
and one
marijuana
possession
deliver,
for which he was sentenced to a term four years’ impris-
onment,
raises
with the sentences to be served
concurrently.
First, he
that the circuit court erred in
two issues on appeal.
argues
second,
and,
he claims that the
his motion to
denying
suppress,
evidence was insufficient to show that he was
possession
*4
both of Malone’s
and affirm.
contraband. We reject
arguments
for review
This case comes to us on the State’s petition
State,
v.
89 Ark.
a decision of the court of
See Malone
of
appeals.
The court of
deter
(2005). in Bald Malone was on Arkansas 67/167 driving Highway a.m., he over Officer Knob at about 2:30 when was by pulled for a broken of the Bald Knob Police Brandon Wilson Department was testified at It cold and Officer Wilson taillight. snowing. a that he ran check on the Texas hearing suppression registration car, before license which indicated that the plate approaching resident, car was to a Texas Eddie Carter. addition to registered Malone, there was one male and one female passenger passenger car, neither of Eddie Officer whom was Carter. Wilson that, testified Malone his his upon request, provided promptly car, and identification of insurance on the but that the two proof their identification Officer after Wilson passengers provided only the information more one several times. No requested provided of The car. of proof ownership registration proof that insurance stated the car was insured in the name of the male After Richardson. Officer Wilson received passenger, Anthony identification all three he returned his car occupants, patrol to run a check on them. The check there revealed that were no warrants. Wilson then Officer asked Malone to come outstanding back to car his so that he could issue a patrol citation for warning the defective taillight. Officer Wilson that testified of course a during writing ticket, he asked Malone where he was Malone said
warning he was going. his niece to her aunt’s house.
taking When Officer Wilson lived, Arkansas, asked where she stated that she lived in he did not know where in Arkansas. although exactly Officer nervous, Wilson testified that Malone un- appeared shaking him, did not contact make with and controllably, answered his eye ain When voice. questions very Wilson finished quiet ticket, with the on the he warning paperwork requested permis- sion to search the car. Malone said he did it not feel was right him to consent because it was not his car. Officer Wilson then give testified he that from Richardson to search requested permission search, state, car. Richardson refused consent to but he did “You as well out.” Officer Wilson stated that might get your dog he then his back from the of his car and got drug walked dog patrol alerted, him around Richardson’s car. dog indicating there were in the trunk. Officer Wilson the trunk drugs opened and smelled a odor of He then immediately strong marijuana. found a suitcase several other in the trunk. The suitcase bags contained a little less than of ten two pounds marijuana pounds cocaine, $100,000. with a combined street value in excess other One of the contained male which bags larger-sized clothing, *5 size, be to Richardson’s and the other contained appeared bag smaller male to be to too small fit Richard- clothing appeared son.
261 the Malone’s challenging We address argument his to to first in order right of the evidence preserve sufficiency 345, State, Ark. v. 356 See double George freedom from jeopardy. State, 41, 46, 770, 341 Ark. 350, Dodson v. 772 (2004); 151 S.W.3d the evidence 489, claims that 492 (2000). 14 S.W.3d he was in to establish that at trial was insufficient presented a of the reviewing challenge constructive drugs. possession evidence, the determine whether verdict we the sufficiency evidence, direct or circumstantial. substantial is by supported 257, State, Ark. Substan (2005). McKenzie v. 362 forceful a conclusion tial evidence is evidence enough compel the or Id. We view one other conjecture. way beyond suspicion verdict, in the most favorable to the the evidence only light evidence the verdict will be considered. Id. Circum supporting stantial evidence the basis to a conviction if it is provides support the defendant’s and inconsistent with consistent with guilt any other reasonable conclusion. Id. there sub before us is whether question
stantial evidence to show that Malone was constructive posses he sion of the contraband found in the trunk of the car was driving.
To
the
must establish that the
constructive
State
prove
possession,
“care, control,
defendant
exercised
over
the
management
McKenzie,
257,
at
contraband.”
S.W.2d 917 linking words, accused to the contraband. Id. In other there must be some evidence that the accused had knowledge presence contraband in the vehicle. factors to be consid Other Jones, supra. vehicles than one ered in cases more involving occupied by person are: view; (2) is in whether
(1) whether contraband plain effects; (3) with the accused’s contraband is found personal is on the same side of the car seat as the accused whether it found it; is the (4) or in near whether accused proximity sitting *6 262 automobile,
owner of the or exercisesdominionand control over it; and whether (5) the accusedacted beforeor suspiciously during the arrest.
McKenzie,
State,
201,
v.
318 Ark.
supra(citing
In this in order to constructive prove possession, the State must show more than the fact that Malone a car occupied in which car, contraband was discovered. As the driver of the Malone exercised dominion and control over it and had to the keys trunk; the odor of in the trunk marijuana an strong, supporting inference that who anyone the trunk would know that the opened trunk contained contraband. There was evidence an supporting inference that the male found in one clothing in the bags trunk was too small for Richardson and could have reasonably been found to to Malone. belong Finally, Wilson testified Malone, car, the driver of the did not know where he was Arkansas,” other than “somewhere in going and was nervous and shaking traffic uncontrollably even during stop, though was for a minor infraction. stop the evidence in the Viewing light State, most must, favorable to the as we we find that there was sufficient evidence of Malone’s of and control over the knowledge contraband Dodson, his conviction. See support supra.
Malone next that the circuit argues court erred in his motion to evidence denying obtained after suppress the initial traffic concluded. stop the trial reviewing court’s denial of evidence, motion to we conduct a de suppress novoreview based circumstances, totality of histori reviewing findings cal fact for clear error and whether those determining facts rise give to reasonable cause, or suspicion due probable giving weight State, inferences drawn the trial court. by 507, Sims v. 356 Ark. 511-12, 530, 157 S.W.3d 533 (2004). case, In this there was about the nothing illegal initial traffic See, which was based on a defective stop, taillight. e.g., State, 507, Simsv. 356 Ark. held, We have (2004). however, that in order to conduct a canine sniff of a motorist’s vehicle after the for the initial legitimate traffic purpose has stop terminated, Rule 3.1 of the Arkansas Rules of Criminal Procedure the officer to reasonable requires that the possess suspicion person committed, is has or is about to commit a committing, or a felony
263 Id. The misdemeanor danger property. involving persons to detain officer must reasonable develop suspicion before State, of the traffic has ended. Burks v. 362 legitimate stop purpose Ark. (2005) S.W.3d Sims (citing *7 Whether there is reasonable (2004)). suspicion whether, circumstances, the the under the of depends upon totality reasons indi- have and articulable police “specific, particularized, that the be in criminal Id. involved cating person may activity.” 142, 155, Ark. Laime 60 S.W.3d 473 (citing (2001)). first the State contends that canine sniff occurred before Therefore,
the
for the
reason
traffic
legitimate
stop
completed.
claims,
the State
the canine sniff was neither a Fourth Amendment
Sims,
violation nor a violation of Rule 3.1. See
Illinois v.
supra;
Caballes,
Our de novoreview revealed the facts following supporting the State’s contention that Officer Wilson had reasonable suspi- First, cion to detain Malone. Officer Wilson testified at the that Malone said he was his niece to her suppression hearing taking house, lived, aunt’s but he when asked where she Malone stated that he did not know in somewhere Arkansas. This answer exactly, was evasive at best. Officer Wilson also testified that Malone was nervous, was did not make contact shaking uncontrollably, eye him, with in a voice. spoke very quiet Finally, Wilson’s check on the Texas license registration indicated plate resident, that However, the car was owned a Texas Eddie Carter. by car;
Mr. Carter was in not no one in the car could car; of the the car was produce proof ownership registration hundreds of miles from the home of its listed owner away traveling north; and there was no indication that Mr. Carter had given of the the car. permission any occupants possess This court has decided several cases recently involving existence of reasonable the detention of a suspicion justifying motorist after the termination of a traffic legitimate stop. Lilley, noticed that was nervous and supra, police Lilley shaking, car; the heat in in that his car and his being despite patrol travel, rental-car was for the fact that agreement one-way despite he to return to California after his visit with his mother in planned that the rental was in another name Virginia; person’s (although was listed as an alternate driver); and that the car smelled Lilley air freshener.
heldWe that these facts did not give police reasonable to detain to conduct a canine sniff of his suspicion Lilley car after the traffic was concluded. Id. stop
However, Burks, we held that did have supra, police reasonable to detain and conduct a canine sniff suspicion appellant after the traffic was concluded. The officer testified that Burks stop anxious and evasive with his answers. A appeared revealed that license check had
Burks been arrested for a firearms offense. Burks was a rental car due to Finally, be returned the driving day before that Arizona, was not to be driven outside of California and which we found could have the officer reason to given suspect the car was stolen. We stated that under the totality circumstances, these facts established “specific, particularized, *8 articulable reasons” that criminal was afoot. Id. activity
We find that the facts in this case bear more similari ties to those in case, Burks than in those In this present Lilley. Officer nervous, evasive, Wilson testified that Malone was and He did not make shaking uncontrollably. contact and whis eye his answers to Officer Malone. pered Malone was Finally, driving a car a car, to Texas resident registered who was not in the with no indication that he had from the owner to permission do so. with the fact Particularly that Malone did coupled not know where he was this could have Officer going, Wilson reason to given that the car was stolen. After suspect reviewing totality circumstances, we conclude that Officer Wilson had specific, and articulable particular, reasons to extend the detention of Therefore, Malone the initial traffic beyond we affirm the stop. circuit court’s denial of Malone’s motion to suppress.
Affirmed. and dissent. JJ.,
Glaze
Imber,
I As said in
Justice,
dissenting.
my dissenting
Tom Glaze,
State,
558,
in Burks v.
362 Ark.
opinion
In the majority present that Brandon Wilson had State’s contention support reasonable to further detain Malone after Wilson com- suspicion First, asked of his initial when Wilson pleted purpose stop. know, that he did where Malone was not going, replied Second, he in and that was “somewhere Arkansas.” Wilson going he did not said Malone to be appeared shaking uncontrollably, contact, make and he answered in a voice. very eye questions quiet Officer Wilson testified the vehicle was Finally, a Texas resident who was not in the car. registered Each of these factors has a and reasonable simple explana- tion, to our cannot form basis for according precedent, First, in reasonable addition to Officer Wilson telling suspicion. did he that he not know where he was Malone stated that going, niece, Natasha, his to her aunt’s house somewhere taking Malone, Texas, a resident of that he did not Arkansas. explained know where he was because he had never been there exactly going A before. reasonable perfectly explanation. *9 Second, however, it should be Malone was noted shaking; cold,
that Officer Wilson the car at 2:29 a.m. on a snowy stopped with in the thirties. And while Malone morning, temperatures to be nervous the we have held appeared during repeatedly stop, nervousness, alone, that mere cannot constitute reason standing able of criminal and for detention. suspicion activity grounds 142, 158, 464, Laimev. 60 S.W.3d Lilley,supra; (2001). the car not the that was
Finally, majority opinion emphasizes to Malone or either of his What majority registered passengers. fails to mention in its is that Officer Wilson was presented opinion
with Richardson, of insurance that proof one of showing Anthony was the insured on the vehicle. passengers, To state the party obvious, a who a steals car does not insure it person in his normally own name. To otherwise is the fact that suspect illogical. Despite these three factors had and reasonable the ma- simple responses, validated Officer Wilson’s jority erroneously search premised his baseless that the car was stolen. suspicion conclusions, to the Contrary majority’s set precedent forth in controls the outcome of this case. The Lilley majority sets out the facts in but then correctly fails to Lilley, its recognize In we held that “it binding precedent. is Lilley a impossible combination of innocent factors to combine into a wholly suspi- cious unless there conglomeration are concrete reasons for such an Beck, interpretation.” Lilley, United States v. supra (citing 140 F.3d Here, 1137 (8th Cir. 1998)). evidence shows that reasonable gave to Wilson’s responses further- questions; more, neither Malone nor his two had a criminal passengers record; nor were there stories to the any officer. conflicting given sum, In there was not one indication of when any illegal activity Officer Wilson decided to conduct a canine search. wasAs the case in the factors Lilley, Officer Wilson’s comprising reason- alleged able are indeed suspicion innocent.” “wholly is also at odds majority with this court’s opinion Ark. holding State,'356 in Simsv. Sims, In (2004). State that Officer argued had reasonable Willey suspicion continue to detain defendant Sims for the purposes conducting sniff, a canine based on the facts: Sims following (1) appeared nervous and was him; not to what listening Willey telling (2) Officer observed that Willey Sims to sweat began during course of the it (3) stop; Willey thought Sims told him strange that he had been to look at Wal-Mart; set at just swing when (4) headed, Sims, asked where he was who had Illinois license plates, that he had explained a friend in just picked up (5) Mississippi; identification, when asked for Sims’s could passenger only produce certificate; a birth the second (6) officer ran background checks on both Sims and his which revealed passenger that both had arrests for prior drugs. facts, held,
After consideration of the above the Sims court that had no factual Willey basis which particular would have rise to an given reasonable objective of criminal suspicion decision, of this we activity. noted that there support odd or unusual about Sims’s nothing the middle of sweating *10 comments that Sims’s regard- the court found Additionally, July. at conversa- a nervous have been attempt set could swing ing set with the is at odds precedent The current decision tion. plainly it is Sims, as Under majority’s logic, in as well Lilley. forth heat, to shake but in the suspicious behavior to sweat July normal snowstorm. in the middle of February circumstances, it is clear that Under totality to extend articulable reasons lacked Wilson specific, particular, thus, the use of the initial stop; the detention beyond purpose P. Ark. R. Crim. vehicle violated to sniff Malone’s drug dog motion to Malone’s trial court erred denying 3.1. Because the I dissent. suppress, LINDER (Johnson) Jennifer W. WEAVER
The Honorable Timothy 05-1080 Court of Arkansas
Supreme 17, 2005 November delivered Opinion PLLC, Abies, Howe & by: The Law Standridge, Peggy Officesof for Linder and Brent Lisa Standridge, petitioner Jennifer J. fones-Ables (Johnson). Gen., Gen., Richardson, Beebe, Ass’t Mike ScottP. by: Att’y Att’y Weaver, W. for Hon. Timothy Judge. respondent Deron LodgeMeyer, respondent Holly Johnson. Motion to is granted. Expedited Supplement Per Curiam. certiorari for writ of
simultaneous briefing petition noon, 2005. November ordered by Tuesday, simultaneous Motion to granted; expedited Supplement ordered. briefing issue of dissent on stay. JJ., Corbin, Imber,
Glaze, trial in this judge Justice, dissenting. Tom Glaze, the record a motion to matter has now filed supplement